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SUSAN A. KOTVAS v. ROBERT KOTVAS (09/18/81)

filed: September 18, 1981.

SUSAN A. KOTVAS, APPELLEE,
v.
ROBERT KOTVAS, APPELLANT



No. 1023 April Term, 1979, Appeal from decree of the Court of Common Pleas, Civil Division, of Allegheny County at No. 631 April Term, 1979.

COUNSEL

Richard K. Brandt, Pittsburgh, for appellant.

Gordon Michael Fisher, Pittsburgh, for appellee.

Cavanaugh, Johnson and Shertz, JJ.

Author: Cavanaugh

[ 290 Pa. Super. Page 550]

The question before us is whether the appellee, Susan Kotvas, complied with the requirements of Pa.R.C.P. 1124(b) in the attempted service upon the appellant of a complaint in divorce. Susan Kotvas filed a complaint in divorce against Robert Kotvas, the appellant, on February 13, 1979. Constable William Martin's attempts at service at the appellant's last known address were unsuccessful. The constable executed an affidavit of attempted service indicating that appellant was "not found" at that address. Appellee thereafter sent a copy of the complaint by certified mail to appellant's last known address, which was returned unclaimed.

On May 8, 1979 appellee filed the affidavit of attempted service, an affidavit of the mailing of the complaint, and an affidavit purporting to set forth the nature and extent of the investigation of the appellant's present residence and whereabouts. On the same day appellee filed a praecipe for hearing and on May 11, 1979 the notice of the hearing (set for June 11, 1979) was sent by the prothonotary to the appellant by certified mail. Appellant accepted the notice, personally signed, as reflected on the certified mail return receipt.

On June 8, 1979 the parties reconciled and the hearing was continued generally. However, on September 17, 1979 appellee filed a second praecipe for a hearing and notice of the scheduled hearing was sent to the appellant's address. The notice was returned by the postal service with the notations "notified September 19, 1979" and "Second notice. No reply to first notice mailed".

The hearing took place as scheduled before the Master in Divorce. Appellant made no appearance. The master recommended

[ 290 Pa. Super. Page 551]

    that the divorce be granted. However, her report contained a remark that "affidavit of diligent search indicates no effort to find [the defendant] other than certified mail; however, file shows reconciliation attempt and postponement after attempted services." On October 25, 1979 a decree in divorce was granted by the lower court. We reverse.

Rule 1124*fn1 provides, in pertinent part:

(b) If service cannot be made under Subdivision (a)(1) or (a)(2) of this rule and has not been made under Subdivision (a)(3) of this rule, and the sheriff or constable has made a return or affidavit of "Not Found", and if the plaintiff has made a good faith investigation to ascertain the present residence and whereabouts of the defendant, ...


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